Summary of New Civil Rights Procedure Beginning July 1, 2017, Contractors bidding on any NJDOT project and sub recipients of Federal or State funds through NJDOT will be subject to new Civil Rights procedures and forms as indicated below.
Regulation(s)
Procedures Beginning 7/1/17
Form CR-261 List of All DBE At the end of the 2017 Federal Fiscal Year and Non-DBE Firms Providing (9/30/17), and annually thereafter, NJDOT will a Bid or Quote for the Contract require all bidders who bid in that fiscal year, to submit a CR-261. The CR-261 lists all DBE and non49 CFR Part 26.11(c) DBE firms who provided a bid or quote to the bidder for work on the project(s) for which bidders submitted a bid. All bidders, regardless of whether or not their bid was successful, must submit a CR261. Form CR-266 Schedule of DBE/ESBE/SBE Participation 49 CFR Part 26.53(b)(2) & 26.55
Pre-Award: All bidders are required to submit the CR-266 at time of bid, as a matter of responsiveness, for any project that has a DBE/ESBE/SBE goal. Changes will not be accepted before contract award.
Form(s) CR-273 Confirmation Pre-Award: Bidders, as a matter of of DBE/ESBE/SBE Firm responsibility,must submit within 5 days after Bid Opening the following completed and signed forms 49 CFR Part 26.53(b)(2)(v) from each DBE/ESBE/SBE firm listed on the CR-266: Form CR-274 DBE/ESBE/SBE Trucking Verification 49 CFR Part 26.55(d)
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CR-273 for each DBE/ESBE/SBE firm
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CR-274 for each trucking/hauling firm
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CR-272 for each regular dealer/supplier firm
Form CR-272 DBE/ESBE Regular Dealer/Supplier Verification 49 CFR Part 26.55(e)
Information provided on the forms is to confirm/verify the information provided on the CR266, therefore, it must match the information on the CR-266. Any firm listed on the CR-266 will not be counted toward the DBE/ESBE/SBE goal commitment unless the CR-273, and CR-274/CR-272, if applicable, are submitted within 5 days after Bid Opening. Adequate documented evidence of good faith efforts must be submitted within 5 days after Bid Opening if the DBE/ESBE/SBE goal has not been met. Post Award: Also, during the construction phase of a contract, the completed and signed CR-273, and
CR-274/CR-272, if applicable, must be submitted with any revised CR-266. Evidence of Good Faith Effort CFR Part 26.53 & Appendix A to Part 26
Pre-Award: If the project has a DBE/ESBE/SBE goal, all bidders will have up to 5 days after Bid Opening to submit adequate documented evidence of good faith efforts documentation if they fail to demonstrate verified attainment of the DBE/ESBE/SBE goal. NJDOT will use the standards in the Federal Regulations to determine the adequacy of good faith efforts. Post Award: If a Contractor fails to demonstrate that their DBE./ESBE/SBE goal commitment during the construction phase does not meet the Contract goal, they must submit good faith effort documentation when they submit any revisions to the CR-266.
Administrative Reconsideration 49 CFR Part 26.53(d)
If NJDOT deems that the apparent lowest responsive bidder failed to meet the Contract goal AND failed to demonstrate adequate good faith effort to do so by the end of the 5th day after Bid Opening, and the bid is rejected, the Bidder may request Administrative Reconsideration (AR). (A bidder failing to submit the CR-266 at time of bid does not have the right to request Administrative Reconsideration.) To receive AR, the Bidder must make a written request within 1 State business day of being notified by NJDOT that the bid was rejected. The request must indicate whether the rejected bidder wants AR in-person or via a written review. Regardless of the type of AR requested, within 2 State business days of filing a request for AR, a rejected bidder must submit written documentation or argument proving that the Bidder met the Contract goal, or submitted adequate good faith effort documentation demonstrating adequate effort to do so. (This is not an opportunity to submit new information on 1) ways to attain the goal commitment or, 2) new good faith effort documentation.)
Notification Requirements Before DBE Subcontracts are Changed/Terminated 49 CFR Part 26.53(f)
In advance of proposed change(s) to the CR266,contractors must notify in writing, affected DBE/ESBE/SBE firms, the RE, and NJDOT Civil Rights (and, on Local Aid projects, notify the project sponsor and NJDOT Local Aid and NJDOT Civil Rights), indicating the reason(s) for termination/change. Affected DBE/ESBE/SBE firms will have 5 State business days to respond to NJDOT Civil Rights, the RE, and the Contractor (on Local Aid projects the response goes to the project sponsor, NJDOT Local Aid and NJDOT Civil Rights), in writing of the reasons why they object to their services being terminated/changed. NJDOT Civil Rights must review the arguments, and approve or deny such changes BEFORE they are made. Changes made without prior approval by NJDOT Civil Rights will not be counted toward DBE/ESBE/SBE goal attainment (and may result in potential payment reduction as described in the last box below).
Modification of the DBE/ESBE/SBE Goal Commitment Official Questions and Answers (Q&A's) DBE Program Regulation (49 CFR 26), Transportation.gov U.S. Department of Transportation (last visited May. 23, 2016)
During the project construction phase, if there are significant changes to the project, NJDOT Civil Rights will determine if the changes necessitate a change to the DBE/ESBE/SBE goal commitment percentage. If so, NJDOT Civil Rights will notify the RE and Contractor of the change in the goal commitment percentage and will require the Contractor to submit a revised CR-266, and CR-273s, CR-272s/CR-274s (if applicable), AND any documented evidence of good faith efforts made to meet the revised goal commitment.
Commercially Useful Function For all DBE/ESBE/SBE firms listed on the CR-266, Monitoring the RE must conduct an on-site Commercially Useful Function (CUF) review via the CR-275. The 49 CFR Part 26.55(c) Contractor will not receive credit toward attaining the DBE/ESBE/SBE goal for firms that do not pass the CUF review. The CUF review monitors whether the DBE/ESBE/SBE firms are independently managing, supervising, and performing their own work. Prompt Payment of Subcontractors and Suppliers 49 CFR Part 26.29 & NJSA 52:32-41
Pay subcontractors and suppliers for satisfactory performance of their work no later than 30 days from receipt of each payment made by the Department. Pay subcontractors and suppliers the full amount of retainage no later than 30 days from receipt of payments made by the Department for the subcontractor’s or supplier’s work. If the Contractor fails to pay a subcontractor or supplier within 30 days after the subcontractor or supplier satisfactorily completes the specified work, the Department may withhold progress payments from the Contractor, until the Contractor pays the subcontractor or supplier any and all delinquent amounts due, or the contract is terminated, or the matter is resolved under N.J.S.A. 52:32-40 and N.J.S.A. 52:32-41. If the Department receives an allegation from a subcontractor or supplier that the Contractor has not paid the subcontractor or supplier the amount due from a previous progress payment, the Contractor must submit to the RE within 10 days of a request made by the RE, evidence that payment has been made, such as copies of cancelled checks or proof of electronic fund transfers. NJDOT is also required to verify prompt payment by prime contractors to subcontractors and suppliers. At a future date, NJDOT will be evaluating electronic systems for monitoring all payments to subcontractors and suppliers by prime contractors, and may implement such a system. Sub recipients of funds through NJDOT are also required to verify prompt payment by prime contractors to subcontractors and suppliers.
Potential Payment Reduction for Not Attaining Goal or Providing Adequate Good
If the Contractor fails to meet the contract DBE/ESBE/SBE goal, without demonstrating adequate good faith effort to do so, the Department
Faith Effort Documentation 49 CFR Part 26.13(b) & 26.53(h)
may make a payment reduction from progress payments, retainage, or the final payment as follows: DBE/ESBE/SBE Goal Payment Reduction = (CG AG) x CP CG = Contract DBE/ESBE/SBE Goal percentage, or approved DBE/ESBE/SBE commitment, or if modified by the Department, the Modified DBE/ESBE/SBE Contract Goal percentage AG = Attained DBE/ESBE/SBE goal percentage = (total dollar amount paid to DBE/ESBE/SBE suppliers and DBE/ESBE/SBE subcontractors divided by CP) plus the percent value attributed to the Contractor’s Good Faith Effort approved by the Department. CP = Total Adjusted Contract Price less the payment adjustments for FINAL LAYOUT, PERFORMANCE BOND AND PAYMENT BOND, and DBE Goal Payment Reduction.
